HARI SHANKAR PRASAD, J. - (1.) THIS second appeal, at the instance of the appellant, is directed against the judgment dated 31.5.1990 and decree dated 15.6.1990 passed in Title Appeal No. 8/74, whereby and whereunder the learned Second Additional District Judge, Dhanbad reversed the judgment dated 10.12.1973 passed in Title Suit No. 122/70.
(2.) THE plaintiff had brought the suit for eviction of the defendant No. 1 respondent from the house premises described in Schedule A of the plaint and for khas possession thereof and also for arrears of rent and the suit filed on behalf of the plaintiff was decreed and being aggrieved by the judgment passed in Title Suit No. 122/70 the defendant preferred an appeal and the appeal was allowed and judgment of the lower Court passed in Title Suit No. 122/70 was set aside and thereafter the plaintiff, who is appellant in this second appeal, has preferred this second appeal and in this second appeal substantial question of law has been formulated as under : "Whether the learned Court of appeal below committed an illegality in dismissing of the appeal without complying with the directions of this Court made in S.A. No. 479/75 (R) - Earlier against the judgment passed in first appeal, Second Appeal No. 479/75(R) was preferred and in that second appeal the judgment and decree of the learned appellate Court was set aside and the appeal was remanded back to the learned appellate Court with some observations and thereafter the learned appellate Court, on receipt of the remand order, again decided the appeal in the light of observations made in Second Appeal No. 479/75(R).
(3.) LEARNED counsel appearing for the appellant submitted that the impugned judgment and decree of the appellate Court is not in accordance with the observations made by the High Court in Second Appeal No. 479/75(R). The observation of the High Court passed in Second Appeal No. 479/75(R) is quoted hereinbelow : - "This is plaintiffs ' appeal in a suit for eviction. The property involved in dispute is a premises situated on a part of plot No. 672 of Khata No. 14 in village Daludih within Katras Police Station in the District of Dhanbad. 2. The plaintiffs ' case was that the defendant is a tenant of a house and he sought his eviction for non -payment of rent for specified period. The defence of the defendant was that he is a privileged person under the Bihar Privileged Person Homestead Tenancy Act having obtained a parcha and, therefore, he was beyond the purview of the suit except, if I may add, on the ground specified in the Act. The short question that has to be determined was whether the defendant was a privileged person and tenant under the Act or not. In this connection the defendant produced Ext. C purporting to be a parcha granted to him by the LRDC, the Collector under the Act. This Ext. C received uncharitable treatment at the hands of the trial Court and on the basis of entries therein was virtually held to be a forgery or a fabrication and the trial Court, therefore, proceeded on the footing that the defendant -respondent was not a privileged person. The appellate Court without setting aside this finding or other material held the defendant to be a privileged person and, therefore, it allowed the appeal. 3. The learned appellate Judge should have considered the reasonings given by the learned trial Judge in regard to Ext. C and come to his own independent finding apart from his own reasoning that he gave. This is all the more essential because apart from the parcha no other document was produced by the defendants to indicate the correctness of their claim to be privileged tenant. In this situation I have no alternative but to set aside the order of the appellate Judge and remit the matter to him for reappraisal in accordance with law. He should do so within two months from the date of receipt of the communication of this judgment. Since the parties have appeared they should appear before the appellate Court and obtain dates. I may also indicate that one opportunity may be given to the defendant - appellant before the appellate Court to prove the original records of the LRDC which led to issuance of the Ext. C. But I, however, reiterate that he should be given only one opportunity to do so. 4. In the result, the appeal is allowed as above. The costs shall abide by the ultimate decision." ;